JUDGEMENT
RAJIV SAHAI ENDLAW,J. -
(1.)THE plaintiff seeks decree for specific performance of an agreement of
sale of immovable property under Order 12 Rule 6 CPC. The application has
been filed after the framing of issues.
(2.)THE plaintiff instituted the suit on 19th January, 2004 on the averments that the defendant had vide agreement to sell dated 15th
February, 2001 agreed to sell the full terrace rights above the second
floor of the building situated on plot of land admeasuring 725 square
yards and bearing No. 33, NH -IV, Lajpat Nagar, New Delhi 110 024 for a
total sale consideration of Rs 40 lacs out of which the plaintiff had
paid Rs 15 lacs at the time of agreement to sell on 15th February, 2001
and remaining sale consideration was payable at the time of execution of
the sale deed after conversion of lease hold rights in the land
underneath into freehold. The plaintiff claimed that on 15th February,
2001 the defendant in part performance of the agreement to sell had handed over the vacant, physical possession of the said open terrace to
the plaintiff and which fact was also mentioned in the agreement to sell.
Besides the agreement to sell, a receipt and an affidavit, also stated to
have been executed by the defendant on 15th February, 2001, have also
been filed. The agreement to sell provided that the defendant, after
obtaining of the requisite permissions, will inform the plaintiff within
a period of 12 months by registered AD letter and also send photocopies
of the said permissions and the defendant will take the balance sale
consideration from the plaintiff at the time of registration of the sale
deed within 60 days of the receipt of the said registered AD letter. The
plaint further avers that on the request of the defendant the plaintiff
gave a further sum of Rs 8 lacs to the defendant on 10th April, 2001 for
which also a receipt was issued; it is averred that the defendant had
represented that the said amount was required by him for getting the
leasehold rights in the land converted into freehold. As per the plaint,
the defendant failed to perform his part of the agreement and to get the
requisite permissions for execution of the sale deed; that on 15th
February, 2002 the defendant had issued a letter to the plaintiff
unequivocally acknowledging that he had not been able to complete the
formalities for registration of the sale deed. The plaintiff claims that
on 1st March, 2003 he noticed from outside that he may have been
dispossessed from the terrace aforesaid and on attempts was not allowed
by the defendant to go up to the terrace. The said instances are averred
to have been repeated on 8th March, 2003. Para 11 of the plaint is
important and is reproduced hereinbelow:
"That on 16.03.2003 the plaintiff along with his father and Shri Gurinder Singh met the defendant at his office there at about 11.30 a.m. and requested him to return the Rs. 23,00,000/ - (Rupees Twenty Three Lakhs Only) received by the defendant from the plaintiff along with interest in case the defendant does not wish to execute the sale deed in terms of the agreement to sell dated 15.02.2001. The defendant got flared up and asked his goons to physically throw out the plaintiff, his father and Shri Gurinder Singh."
The plaintiff claims to have lodged a complaint with the police on 17th March, 2003 and upon the failure of the police to take action, approached the Metropolitan Magistrate and as per whose directions FIR
was registered against the defendant on 16th April, 2003. The plaintiff
thus claimed the relief of specific performance by directing the
defendant to obtain various permissions and clearances and for permanent
injunction restraining the defendant from dealing with the terrace
aforesaid and a money decree for damages of Rs 3 lacs with interest at
26% per annum from 6th December, 2003 till the date of realization as well as pendente lite damages of Rs 30,000/ - per month. The plaintiff
also claims an alternative relief of recovery of Rs 23 lacs alongwith
interest at 26% per annum and the money decree for an amount of Rs 40
lacs towards damages with interest at 26% per annum.
(3.)THE defendant filed a written statement. The defendant did not deny the agreement to sell or the receipt or the affidavit all dated 15th
February, 2001 stated to have been executed by him. The defendant also
admitted receipt of further payment of Rs 8 lacs and execution of receipt
therefor. The defendant, however, contested the relief of specific
performance averring that though it was so mentioned in the agreement but
the possession of the terrace was not delivered to the plaintiff and was
to be delivered on the execution of the sale deed only; that the
defendant made repeated reminders to the plaintiff for balance payment so
as to hand over the possession of the terrace to the plaintiff but the
plaintiff was delaying the matter; that the defendant had applied for
conversion of leasehold rights into freehold which was still pending as
the LandDO had raised a demand of Rs 18 lacs; however, the plaintiff came
to the office of the defendant in December, 2001 alongwith Mr Gurinder
Singh and told the defendant that he was no longer interested in the said
deed and asked for refund of the money; that the defendant agreed to the
cancellation of the agreement to sell and to refund the sum of Rs 23 lacs
received under the agreement to sell from the plaintiff; that in the
month of January, 2002 the defendant paid a sum of Rs 15 lacs in
different phases to the plaintiff but the plaintiff did not issue any
receipt on the ground that he will issue full and final receipt after
entire refund; that the plaintiff insisted upon security for the balance
of Rs 8 lacs and for which purpose the defendant issued three cheques and
promissory notes to the plaintiff wherein the name of the payee was left
blank; that the plaintiff had however filled up the name of his father on
the cheques and the promissory notes and the father of the plaintiff had
instituted the suit under Order 37 CPC and complaint under Section 138 of
the Negotiable Instrument Act against the defendant. The defendant
further pleaded that subsequently since the plaintiff had meted threats
to the defendant, the defendant had also lodged complaints against the
plaintiff. The defendant thus contested that, the plaintiff having
himself cancelled the agreement to sell, was not entitled to specific
performance thereof.
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